2017 Harvest

Tuesday, August 28, 2012

A recent decision of the Ontario Superior Court of Justice begins with the following question: "Is it normal farming practice to alter the topography of lands by the depositing of large quantities of fill?". A couple had purchased a 108-acre property on the Oak Ridges Moraine through a holding company and submitted to the local municipality a fill permit application to deposit 300,000 cubic metres of fill on the property (approximately 30,000 dump truck loads). The municipality eventually brought a motion for injunctive relief to stop the unauthorized deposit of fill on the property.

According to the owners, the purpose of the fill was for the purposes of enhancing their ability to farm the property. This was the position they took in response to the municipality's injunction application. Yet, in an affidavit sworn by the wife in support of an earlier application by the owners to quash a municipal by-law, it was stated that, "we were interested in purchasing the property for the purposes of using it as a "fill site" for clean fill". The Court noted that in none of the owners' materials in the first application was there mention of any intention to use the property for farming.

In November, 2010, the municipality became aware that the owners were depositing more fill onto the property than was permitted by the applicable by-law. The municipality issued a compliance order, but the deposits of fill continued. The Court found that the owners did not comply with any of the orders issued by the municipality. It also ruled that:

Based on the evidence that was placed before this court I am not satisfied that the depositing of the quantity of fill that has been observed, and specifically the intent of the respondents to ultimately deposit upwards of 30,000 truckloads of fill, in any way remotely resembles a normal farming operation.

The owners had argued that their operation was protected by the normal farm practices legislation.

The Court issued a permanent injunction against the owners restraining them from performing any further site alterations on their property and specifically restraining them from depositing any further fill or altering the grade of the property other than as permitted by a building permit, an agreement with the municipality and the site by-law.

Monday, August 20, 2012

Calgary landowner Genstar Development Company applied to the Alberta Court of Queen's Bench remove a right of way held by Plains Midstream Canada ULC from title to its property. Plains Midstream opposed proceeding on the basis of an application with written materials, arguing that a trial was necessary.

In the 1950's, Cremona Pipe Lines Ltd. constructed the Cremona Pipeline stretching 444 km between Calgary and Sundre. Cremona had an Easement Agreement with one of Genstar's predecessors in title. The Agreement provided that it would be binding on all future owners of the land and would remain in effect from May 19, 1956 and "for so long thereafter as [Cremona] may desire to exercise" its rights and privileges.

While the northernmost 314 km of the pipeline remains in operation, operation of the southernmost 130 km was suspended by Pembina Pipeline Corporation (a Genstar predecessor) in 1997; the pipeline under the lands owned by Genstar was removed from the ground. In 2009, Plains Midstream purchased the line from Pembina, including the rights of way under all lands along the Cremona Pipeline.

In 2010 and subsequently, Genstar asked Plains Midstream to discharge the right of way on its lands. Plains Midstream responded with an offer to re-route its right of way, but Genstar eventually commenced the court application.

In reviewing the application materials, the Court concluded that a trial would be necessary in order to have all of the evidence required to answer the legal issues in play: "Given the complex and unsettled legal issues identified above, it is my view that any decision in this case should be founded on complete and nuanced findings of fact resulting from a trial, rather than on a paper record resulting from an originating application."

Monday, August 13, 2012

This is to advise
you that the final FIT Program Rules, Contract and other program documents have
now been posted on the FIT Program website. The Ontario Power Authority thanks all those who provided
comments and submissions on the draft documents.

The application window for small FIT
projects is anticipated to open on October 1, 2012, and remain open until
November 30, 2012. If your FIT project is a small FIT project (typically
500 kW or smaller), then you must submit your electronic application form
during the application window to be considered under the FIT 2.0
Program. The OPA anticipates awarding 200 MW of small FIT contracts.

The OPA recommends that you review
the final versions of the program documents carefully to ensure you understand
how the FIT Program has changed. In addition, there have been several
revisions made to the draft version of the Rules as a result of feedback
received.

In order to retain their original
time stamp, those who had previously submitted a small FIT project application
must submit a revised electronic application form during the small FIT
application window, followed by a hard copy submission within five business
days. New small FIT project applications will also be accepted during this
same window. All applications received during the window will be reviewed
according to the new FIT Program Rules for compliance and for the prioritization
of applications. Where projects have the same number of priority points, the
time stamp will be used to determine the order in which projects will be tested
for available transmission and distribution capacity. As indicated above,
the OPA expects to award 200 MW of small FIT contracts under the first
application window for small FIT projects.

Once FIT contracts have been offered
to successful applicants, any FIT applications that do not receive contracts
will be terminated and their time stamp will be lost. Application Security
will be returned.

Pre-existing small FIT applications
that are not resubmitted during the first application window for small FIT
projects will also be terminated. In this case, the time stamp will be
lost and the Application Fee will be returned. These projects can reapply with
a new application within the next small FIT application window.

The timing for the large FIT project
application window will be communicated once details are finalized.

The OPA has posted a list of
questions and answers about the revised program, which can be found here.

If you still have questions about
this process after reading the OPA’s website, please contact the OPA’s customer
service centre at 1-888-387-3403 or email FIT@powerauthority.on.ca.

Friday, August 10, 2012

I posted in early 2011 about a decision of the Ontario Court of Appeal concerning a lane used by cottagers located on a neighbouring farm (see March 18, 2011). The Court of Appeal upheld the decision of a Superior Court Judge
which ruled that certain cottage owners in Northumberland County had acquired a
prescriptive easement over the laneway. The owner of
the farm property does not use the lane and did not want to pay for upgrades to
the lane.

In a further ruling, Ontario Superior Court Justice Peter Lauwers has ruled that the cottagers (the owners of the "dominant tenement") "have the duty to repair Sunnybrae Lane that is imposed on them by the common law". He also ruled that, "the duty is flexible and relates to the conditions on the ground as they appear from time to time."

In other words, the cottagers can use the lane, but it is their responsibility, and not the responsibility of the farm owner, to repair the lane when necessary.

Wednesday, August 8, 2012

In a letter dated August 7, 2012 to the Joint Review Panel (consisting of three members, two of whom are members of the NEB) hearing the Enbridge application for the Northern Gateway Pipeline, the CEO of the National Energy Board (NEB), Gaetan Caron, has asked that Panel "explore opportunities to submit your report as early as possible prior to the expiry of the time limit." The time limit reference is to the December 31, 2013 deadline for a report to Cabinet set by the federal government. Mr. Caron reminds the Panel of this deadline, but also appears to invite the Panel to take active steps to speed up the process.

The Investigations and Enforcement Branch (IEB) of the Ontario Ministry of the Environment (MOE) is seeking an accreditation by the Commission on the Accreditation of Law Enforcement Agencies (CALEA). CALEA is an international enforcement standards organization based in Virginia, USA that accredits agencies whose systems and directives meet internationally recognized standards for delivering service.

An assessment of the IEB's system and directives against these standards will be evaluated in an onsite assessement conducted between August 12 and August 15, 2012. During the onsite assessment, assessors will provide an opportunity for the public to comment on the IEB's accreditation. COMMENTS WILL BE RECEIVED IN A PUBLIC CALL-IN SESSION TO BE HELD ON AUGUST 13, 2012. Members of the public and organizations can comment by calling 1-416-326-4426 between 2 p.m. and 4 p.m. on August 13. Callers will be limited to 10 minutes and must address accreditation issues.

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John D. Goudy, Lawyer

John is a litigator whose practice is focused in the areas of commercial and environmental litigation, expropriation law, energy regulation, and regulatory offences. He is particularly interested in agricultural issues and the regulation of agricultural land use, and lives and works on his family’s cash crop farm north of London, Ontario with his wife and three kids.

ACI Published Author

Law of the Lands provides legal information of interest to landowners. If you require legal advice about your particular situation, please click on John's profile for contact information or visit scottpetrie.com.